Are Justices Politicians In Robes?

Alan Dershowitz puts forth a cynical idea today in Forbes: Judges are always just politicians in robes, and being on the court doesn't change them one iota.

It was biography rather than precedent that determined the entirely predictable votes of the justices in Bush v. Gore (the 2000 presidential election case), Roe v. Wade (the abortion case), Lawrence v. Texas (the gay rights case) and so many other critical cases decided by the High Court. In Bush v. Gore, when the lawyers were seeking to persuade "swing votes," no one wasted even a minute reading Chief Justice Rehnquist's past decision, which clearly favored the Gore legal position. Everyone knew that Rehnquist would cast his vote for Bush, regardless of the facts or the law. The same was true for several other justices as well.

So Dershowitz sees Alito as a judge that will be bad for the little guy and good for big business, good for religion and bad for the AU-type guys, tough on women and minorities but easy on the Old Boys Club. His characterizations of Alito's record is off, because he's turned the contrast knob up to the max; things are always shades of gray. And he's definately wrong on the last point, because there's a difference between being against affirmative action and being against women and blacks.

Of course, we hope Dershowitz is right in this case, and we get in Alito what President Bush hopes we're getting, and not another Souter.

Dershowitz so over-politicizes the court that he doesn't see Alito as a deciding vote in reversing Roe vs. Wade.

Were a Republican court ever to reverse a woman's right to choose, the Republican Party would suffer greatly at the polls--and the justices know this. If he could safely vote in dissent to overrule Roe, he might well do so, because as his mother has said, he strongly opposes abortion as a personal matter.

Wishful thinking, Alan. Given the opportunity, the court George Bush has worked hard to design would overturn it.

And as for suffering greatly, the Dem's blood-soaked defense of partial birth abortion and juvenile abortions without parental notification -- the two most likely places existing decisions would be reversed -- drove Dems in droves to the GOP ranks.

h/t RCP